Peavy et al v. Axelrod

Filing 48

ORDER ADOPTING 39 REPORT AND RECOMMENDATIONS. The Court DENIES 11 Defendant's Motion to Dismiss for Lack of Personal Jurisdiction and DENIES 14 Motion to Transfer Venue filed by Barry Axelrod. Signed by Chief Judge Kristi K. DuBose on 8/9/2017. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JACOB E. PEAVY, INDIVIDUALLY AND
AS TRUSTEE OF THE JACOB E. PEAVY
REVOCABLE TRUST, and
KATIE L. PEAVY,
Plaintiffs,
vs.
BARRY AXELROD,
Defendant.

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§ CASE NO. 17-0142-KD-MU
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ORDER
After due and proper consideration of the issues raised, and a de novo determination of
those portions of the recommendation to which objection is made, the recommendation of the
Magistrate Judge made under 28 U.S.C. § 636(b)(l)(B)1 and dated June 27, 2017, is ADOPTED
in part, as the opinion of this Court, as follows:
1) The Court adopts the Magistrate Judge’s Standard of Review and Findings of Fact
(doc. 39, p. 2-9).
2) The Court adopts the Magistrate Judge’s Conclusions of Law in Section I (doc. 39, p.
9-13), Section I (A)(ii) with respect to Specific Jurisdiction (doc. 39, p. 20-24), and in Section I
(B) (doc. 39, p. 25-27).
1

Under this statute, the district court must make a de novo determination regarding those
findings to which any party objects, and may accept, reject, or modify the magistrate judge's
recommendations.

3) The Court adopts the Magistrate Judge’s Conclusions of Law in Sections II and III,
wherein the Magistrate Judge recommends denial of Defendant’s Motion to Transfer Venue
Pursuant to 28 U.S.C. §§ 1404(a), 1406(a) & 1631 (doc. 39, p. 28-43).2
Accordingly, Defendant’s motion to dismiss for lack of personal jurisdiction or,
alternatively, to transfer venue of the action pursuant to 28 U.S.C. §§ 1406(a) and 1631 and
Defendant’s motion to transfer venue pursuant to 28 U.S.C. § 1404(a) are DENIED.
DONE and ORDERED this the 9th day of August 2017.

s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE

2

Defendant also criticizes the Magistrate Judge’s finding that venue would also be
proper in the Southern District of California. Specifically, he points out that the Magistrate Judge
erroneously cited to 28 U.S.C. § 1391(a) instead of 28 U.S.C. § 1441(a), as the initiating venue
statute. Next Defendant punctiliously points out that although the Magistrate Judge correctly
found that venue would be proper in the Southern District of California, he failed to recite all the
supporting facts for this finding. Neither of these objections changes the conclusion.